JUDGMENT
G.A. Brahma Deva, Members (J)
1. These are 4 (four) appeals filed by the appellants with reference to the respective impugned Orders, passed by the Commissioner of Customs, Bangalore.
2. Since the issue involved is common in all these appeals, they were taken together for hearing and are being disposed of by this common order.
3. Shri Rameshananthan, learned Advocate appearing for the appellants submitted that the impugned goods are smuggled toys of Chinese origin as alleged by the Department. It was submitted by the counsel that since the items in the questions have not been notified under Section 123 of the Customs Act the burden lies on the Department to prove whether they are smuggled goods or otherwise. In the instant case, it was the contention of the party from the beginning that have purchased the goods from the local persons, supported by invoices and there is no cause for confiscation of goods.
4. Shri Narasimha Murthy, JDR for the Revenue submitted that since the impugned items are not tallying with the Bills of Entry produced by the suppliers, the action of the Department is justified in confiscating the goods. He also drew our attention to Para 19 of the Order of the Additional Commissioner with reference to the Appeal No. C/229/03. The relevant para 19 is as under-
“19. M/s. Anil Trading Co. subsequently produced copies of bills/Invoices of M/s. JSW Industries, Mumbai, M/s. Kumar Trading Co., Delhi and a few local suppliers local suppliers are Bangalore. In the regard, the Department made a reference to the Deputy Commissioner of Customs. Delhi in respect of Bill No. 4969 dated 4.11.2002 raised by M/s. Kumar Trading Co., Delhi to which the Superintendent of Customs, Preventive, New Delhi has intimated that the owner of M/s. Kumar Trading Co., Shri Vijaya Kumar is presently under detention in Tihar Jail, New Delhi under CONFEPOSA. It has therefore, to be inferred that the impugned goods have not been supplied from the licit stock of imported goods, as the Proprietor of M/s. Kumar Trading Company, New Delhi. Shri. Vijaya Kumar, who supplied the goods to M/s. Anil Trading Co., Bangalore is presently under detention under COFEPOSA for acts of omission and Commissioner under the Customs Act, 1962. In respect of verification done by the Assistant Commissioner of Customs (Preventive), Mumbai, it has been stated that none of the items referred to are tallying with the Bills of Entry produced by the suppler. Therefore, it is evident from the above facts that only bills/invoices produced by M/s. Anil Trading Co. for few toys are not fully supported by the bills/invoices. All the above evidences are sufficient to prove the illicit import of the Toys into the Country and the onus of proof is shifted to the person who possessed the goods to prove that the Toys of. Chinese origin are licitly imported and purchased by them as held in the case of L.K. Bagla v. Commissioner of Customs, Calcutta, 1999(111) ELT266(T). In view of the above, the reliance placed by the Advocate in the case of Sunil Kumar Agarwal v. Commissioner of Customs, Calcutta, 2001 (130) ELT 921 cannot be taken into consideration in the instant case as sufficient proof in this case has been adduced and discussed in detail. Further, the Supreme Court in D. Bhoormull’s case has held that smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the preventive department to unravel every link of the process. The Apex Court further held that the Department would be deemed to have discharged its burden, if it adduces so much evidence, circumstantial or direct, as is sufficient to raise a presumption in favour with regard to the evidence of the fact sought to be proved. In view of the above reasons the advocate’s plea that the department could not produce/adduce evidence in respect of the goods fails. Further, when the burden of proof is shifted to the noticees in the instant case and the said M/s. Anil Trading Co., and Shri Devi Singh could not produce the proof that the goods are not smuggled into India, as has been held in the case of L.K. Bagla v. Commissioner of Customs, the toys of foreign origin valued at Rs. 1,28,058 under seizure are liable to be confiscated under Section 111(d) of the Customs Act, 1962 for contravention of Customs Act, 1962 and M/s. Anil Trading Co. and Shri Devi Singh are liable to penal action under Section 112(b) (ii) of the Customs Act, 1962.” Further, the DR submits that the Department has made an enquiry with reference to the invoices issued by M/s. Kumar Trading Co., and one Vijay Kumar who was said to be supplied goods was under detention COFEPOSA.
5. We have carefully considered the matter. On perusal of the records particularly on going through the respective impugned orders, we find there are certain discrepancies in arriving at the conclusion. Further to what extent the impugned goods were supported by genuine invoices is also to be looked into. It is well settled position that if the goods are not notified under Section 123 of the Customs Act, the burden lies on the Department to prove whether the goods are smuggled or otherwise. No categorical finding by the authorities that they are smuggled goods. In view of this factual discrepancies, we are of the view that the matter requires to be re-examined by the adjudicating authority. In the view we have taken the matter is remanded to the concerned adjudicating authority to examine all the issues afresh and to pass an appropriate order in accordance with law on providing an opportunity to the party.
6. Thus these appeals are disposed of in the above terms.